Citation Nr: 0310450
Decision Date: 05/30/03 Archive Date: 06/02/03
DOCKET NO. 02-00 782 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
residuals of a right knee cyst.
2. Entitlement to service connection for a rectal
disability, to include hemorrhoids.
3. Entitlement to service connection for a skin disability,
including as secondary to herbicide exposure.
4. Entitlement to service connection for residuals of a
right wrist strain.
5. Entitlement to service connection for right knee
arthritis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M.Cooper, Counsel
INTRODUCTION
The veteran served on active duty from February 1964 to
January 1966.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2001 decision of the Detroit,
Michigan, Department of Veterans Affairs (VA) Regional
Office. A Travel Board hearing was held in October 2002,
before the undersigned who was designated by the Chairman to
conduct the hearing pursuant to 38 U.S.C.A. § 7102 (West
2002). A transcript of the hearing testimony has been
associated with the claims file.
In a May 2002 statement, the veteran withdrew from appellate
consideration the claims pertaining to arthritis in all
joints and a pituitary gland tumor. At the time of the
October 2002 hearing, and in a written statement thereafter,
the veteran withdrew his claims pertaining to a prostate
disorder and bladder cancer. He also indicated that he
wished to preserve his appeal on the issue of entitlement to
service connection for right knee arthritis. The issues
listed on the first page of this decision reflect the above.
REMAND
Initially, the Board notes that the Veterans Claims
Assistance Act of 2000 (VCAA) became effective during the
pendency of this appeal. 38 U.S.C.A. § 5100 et. seq. (West
2002). There have also been final regulations promulgated to
implement the new law. See 38 C.F.R. §§ 3.102, 3.156(a),
3.159, and 3.326 (2002). The VCAA and the implementing
regulations essentially eliminate the requirement that a
claimant submit evidence of a well-grounded claim, and
provide that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim but is not required to
provide assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim.
The VCAA and its implementing regulations also require VA to
notify the claimant and the claimant's representative, if
any, of any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is
specifically to inform the claimant and the claimant's
representative of which portion of the evidence is to be
provided by the claimant and which part VA will attempt to
obtain on behalf of the claimant.
On remand, the RO must assure compliance with the provisions
of the VCAA, to include the notification provisions
consistent with Quartuccio v. Principi, 16 Vet. App. 183
(2002).
Furthermore, during the October 2002 Travel Board hearing,
the veteran indicated that his family physician, Peter Thoms,
M.D., and other physicians provided treatment for many of his
claimed disabilities, and has asserted that such records
would show the current existence and a service-related
etiology of the claimed disabilities. Although the record
includes private treatment records from several physicians;
such records are largely unrelated to the claimed
disabilities currently under appellate review. Since it
appears that additional relevant treatment records may exist,
such should be obtained as part of the VA's duty to assist.
Finally, the veteran's service medical records reflect
treatment and evaluation for hemorrhoids. Contemporary
private medical evidence also shows treatment for
hemorrhoids. There is, however, no medical opinion speaking
to whether a relationship exists between the veteran's
currently diagnosed hemorrhoids and hemorrhoids noted during
active service.
For the above reasons, the case is REMANDED to the RO for the
following:
1. The RO should issue the veteran a
letter advising him as to the provisions
of the VCAA and its implementing
regulations, and, specifically providing
him with the notice required under
38 U.S.C.A. § 5103(a). The RO should
inform the veteran as to the nature of
the evidence needed to support his claims
specific to each issue on appeal, and the
actions required of the veteran in order
for VA to assist him in those claims.
The RO should specifically request the
veteran to determine the names,
addresses, and dates of treatment for any
health care providers (VA or non-VA) who
have provided him with treatment for the
right knee, skin, right wrist, and/or
rectal problems, including hemorrhoids.
The veteran should include identification
of treatment for the above-cited
disabilities by any of the following
physicians: Drs. Moeller/Molder, Nolan,
Boyers, and Thoms. After securing the
necessary releases, the RO should make
all reasonable efforts to obtain medical
records identified by the veteran and not
already associated with the claims file.
The RO should also inform the veteran
that the requested information and
evidence must be received within one year
of the date of the RO's letter. The RO
should advise the veteran that if he
desires to waive his right to a one-year
period in which to submit additional
evidence and information to the RO, he
should provide a signed statement
affirmatively waiving that right.
2. The veteran should be afforded a VA
examination by a physician with the
appropriate expertise to determine the
existence and etiology of hemorrhoids.
The claims folder should be made
available to the examiner and review of
such should be noted in the completed
examination report. The examiner is
requested to provide an opinion as to
whether it is at least as likely as not
that recurrent hemorrhoids, as shown in
contemporary medical records, are related
to hemorrhoids shown during the veteran's
active service. The rationale for all
opinions reached should be provided.
3. After all requested development has
been completed, to the extent possible,
the RO should review the claims file and
otherwise ensure that all notification
and development action required by the
VCAA is completed. The RO should
consider whether, based on review of any
additionally received information,
further examinations are warranted.
4. The issues in appellate status should
then be readjudicated by the RO based on
consideration of the entire evidentiary
record. If any benefit sought on appeal
remains denied, the veteran and his
representative should be provided with a
supplemental statement of the case. The
supplemental statement of the case must
contain notice of all relevant actions
taken on the claim for benefits, to
include a summary of the evidence and
applicable law and regulations considered
pertinent to the issues on appeal. An
appropriate period of time should be
allowed for response.
Thereafter, subject to current appellate procedure, the case
should be returned to the Board for further consideration, if
in order. No action is required on the part of the veteran
or his representative until further notice is received. By
this action, the Board intimates no opinion, legal or
factual, as to the ultimate disposition warranted in this
case. The veteran has the right to submit additional
evidence and argument on the matter the Board has remanded to
the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment by the
RO. The law requires that all claims that are remanded by
the Board or by the United States Court of Appeals for
Veterans Claims (Court) for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West 2002) (Historical and Statutory Notes). In
addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
_________________________________________________
J. M. Daley
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).